You are here: / / THE BANK’S DISCONTINUANCE OF THE FORECLOSURE ACTION DID NOT REVOKE...
,

THE BANK’S DISCONTINUANCE OF THE FORECLOSURE ACTION DID NOT REVOKE THE ACCELERATION OF THE DEBT; THE REQUEST, AFTER DISCONTINUANCE, FOR A DECLARATION THE ACCELERATION HAD BEEN REVOKED WAS A REQUEST FOR AN IMPERMISSIBLE ADVISORY OPINION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the acceleration of the debt had not been revoked by the discontinuance of the foreclosure action and plaintiff’s request for a declaration the acceleration had been revoked, made after the action was discontinued, was an improper request for an advisory opinion:

Upon discontinuance of the action, a judicial declaration on the issue of whether the plaintiff elected to revoke its acceleration would be merely advisory inasmuch as there was no active case in which such declaration could have an immediate effect. Indeed, by seeking voluntary discontinuance of the action, the plaintiff, in effect, waived any right to seek any further judicial relief in the action … . …

In this Department, a lender’s mere act of voluntarily discontinuing an action does not constitute, in and of itself, an affirmative act revoking an earlier acceleration of the debt … . This is so because “the full balance of a mortgage debt cannot be sought without an acceleration, whereas the voluntary discontinuance of a foreclosure action may be occasioned for any number of different reasons, including those that have nothing to do with an intent to revoke the acceleration” … . Thus, it is the plaintiff who has authority to revoke its election to accelerate the mortgage debt under the terms of a note, and not the court. U.S. Bank Natl. Assn. v McCaffery, 2020 NY Slip Op 04805, Second Dept 8-26-20

 

You might also like
PROOF OF MAILING OF THE RPAPL 1304 NOTICE TO THE CORRECT ADDRESS WAS NOT INCLUDED IN THE INITIAL MOTION PAPERS AND THEREFORE WAS NOT PART OF PLAINTIFF’S ATTEMPT TO MAKE OUT A PRIMA FACIE CASE; IN ADDTIION, THE PROOF OF MAILING OF THE RPAPL 1304 NOTICE WAS DEFICIENT (SECOND DEPT).
A Forged Deed Is Void Ab Initio and Conveys Nothing to a Bona Fide Purchaser or Encumbrancer
THERE CAN BE MORE THAN ONE PROXIMATE CAUSE OF AN ACCIDENT; HERE PLAINTIFF BICYCLIST WAS ENTITLED TO SUMMARY JUDGMENT ON LIABILITY BUT DEFENDANT DRIVER’S COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE REMAINED VIABLE (SECOND DEPT).
BANK DID NOT COMPLY WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE ACTION; THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
FAMILY COURT HAD THE POWER TO RETROACTIVELY DISMISS A NEGLECT PETITION AND IMPOSE A SUSPENDED JUDGMENT AFTER MOTHER DEMONSTRATED THE ABILITY TO CARE FOR HER CHILDREN (FIRST DEPT).
PLAINTIFF DID NOT RAISE A QUESTION OF FACT ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED 2ND DEPT.
THE CHILD’S HEARSAY STATEMENTS CLAIMING HE WAS PUNCHED IN THE STOMACH WERE NOT CORROBORATED AND THEREFORE COULD NOT SUPPORT A FINDING OF NEGLECT BY THE INFLICTION OF EXCESSIVE CORPORAL PUNISHMENT (SECOND DEPT). ​
IN REINSTATING THE ACTION AFTER VACATING THE ORDER GRANTING SUMMARY JUDGMENT TO DEFENDANTS’, THE SECOND DEPARTMENT EXPLAINED WHAT SHOULD BE ALLEGED IN A COMPLAINT FOR LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION (SECOND DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE RPAPL 1304 NOTICE WAS DEFECTIVE ON ITS FACE; PLAINTIFF’S SUMMARY JUDGMENT... PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER A CONSTRUCTIVE TRUST ON REAL...